Wilks v. BNSF Railway Company
ORDER by Magistrate Judge Kimberly E. West granting 159 Motion in Limine, in that no witness who does not possess a medical license may offer a medical opinion. However, Mr. Weaver does not offer a medical opinion and may testify at trial. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BNSF RAILWAY COMPANY,
Case No. CIV-18-080-KEW
O R D E R
This matter comes before the Court on Plaintiff’s Motion in
Limine Regarding Brian Weaver and Any Other Witnesses Without a
Medical License Offering Medical Opinions (Docket Entry #159).
Mr. Weaver offers an opinion on whether
incident giving rise to her injury is consistent with her physical
injuries supported by the medical record.
To be sure, Plaintiff
does not challenge Mr. Weaver’s methodology or his qualifications
as a biomechanical engineer; thus, this challenge does not entail
an analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 593 (1993).
Rather, Plaintiff challenges (1) any
medical opinion offered by Mr. Weaver since he is not a medical
doctor; and (2) whether Mr. Weaver’s testimony will assist the
jury on a question it is to consider under Fed. R. Evid. 702.
Mr. Weaver offers this summary of his conclusions:
1. The biomechanical mechanism associated with the
traumatic causation of intervertebral disc
herniations involves compression combined with
2. Torsion (i.e. twisting) has not been shown to be
a competent cause of an intervertebral disc
3. The subject incident did not generate the
biomechanical environment (compression combined
with hyper flexion) that is known and generally
accepted to result in traumatic intervertebral
4. Spinal compression is required to contribute to
nuclear propagation through the annulus, i.e.
structural progression of a disc herniation.
5. The compressive force experienced by Ms. Wilks’
spine during the subject incident was minimal
and less than simple, routine physical activity.
6. Ms. Wilks would have experienced more motion and
compressive force in her lumbar spine during the
motor vehicle accident on August 15, 2015 than
she did during the subject incident.
See Plaintiff’s Motion in Limine (Docket Entry
#159), Exh. No. 1, p. 5.
concerning medical diagnoses or the cause of a person’s injuries,
aggravation of a pre-existing condition.
See e.g. Smelser v.
Norfold So. Ry. Co., 105 F.3d 299, 305 (6th Cir. 1997); Smith v.
BNSF Ry. Co., 2011 WL 7053631, *5 (W.D. Okla. Sept. 14, 2011). A
biomechanical engineer can testify that the force sustained by a
plaintiff could potentially cause certain injuries.
It is indeed a fine line that the expert can cross between
medical diagnosis and force analysis causing a condition.
Weaver appears to maintain his examination in the realm of force
analysis according to his report conclusions rather than medical
He does not appear to recognize that Plaintiff could
have suffered aggravation of an existing condition but that would
have also required that he delve into medical causation.
Court cannot conclude that the opinions provided are prohibited
medical diagnoses or that they would not assist the trier of fact
in assessing whether Plaintiff could have sustained injury when
subjected to the forces in replacing the knuckle. Any deficiencies
in his analysis can be addressed adequately on cross-examination.
IT IS THEREFORE ORDERED that Plaintiff’s Motion in Limine
Regarding Brian Weaver and Any Other Witnesses Without a Medical
License Offering Medical Opinions (Docket Entry #159) is hereby
GRANTED, in that no witness who does not possess a medical license
may offer a medical opinion.
However, Mr. Weaver does not offer
a medical opinion and may testify at trial.
IT IS SO ORDERED this 31st day of March, 2021.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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